Fasken instrumental in landmark language rights case in Canada

Fasken argued and won, at the Supreme Court of Canada, the leading language rights case under the federal Official Languages Act. “This landmark decision will likely be applied to many provincial statutes as well,” said Martin Sheehan, a Co-Leader of the Litigation and Dispute Resolution Group at Fasken. “Its impact will also affect how language rights apply in Quebec courts via section 133 of the Constitution Act, 1867.” On its face, Kassem Mazraani’s original 2016 Tax Court of Canada (TCC) case against the Minister of National Revenue, had nothing to do with language rights. At issue was whether he was an employee or an independent contractor. Mazraani’s employer, our client, Industrial Alliance Insurance and Financial Services Inc. (IA), intervened since the verdict would have major ramifications for the company, which employs 400 other insurance reps as independent contractors. At the trial, IA’s first witness asked to testify in French. Although the judge said an interpreter could be brought in, he also warned that this would delay the hearing until one was found. Pressured by the judge, a hasty compromise was worked out for the first witness, who agreed to speak English. Unfortunately, this compromise was later imposed on other francophones without their free and informed consent. For the next six days, when other IA witnesses spoke in French the judge would interrupt them and continued to speak in English or insisted they do the same—ultimately transforming the case from tax issues to language rights. Mazraani won the TCC case and IA successfully appealed to the Federal Court of Appeal. Mr. Mazraani then obtained leave to take the case all the way to the Supreme Court of Canada (SCC). The SCC found that these language rights “violations were numerous and, in some cases, serious and repeated, and they brought the administration of justice into disrepute.” The ruling also lays out the “judge should have intervened to explain that the right to testify in the official language of one’s choice is unconditional.” Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, not only preserved the right of IA to obtain a new and fair trial, but also confirmed broad protection for minority language rights in the federal civil justice system. Yves Turgeon, Michael Shortt, and Paul Côté-Lépine were involved in this matter at the SCC level. Thanks to their work, when a person now asks a judge for permission to speak in the official language of his or her choice, the judge’s answer must always be “yes” .